I come to the battlefield after the fires have extinguished and the embers cooled, but having fully intended to write something on the subject when it was hot, I feel the central topic is timeless and the particular affair in question momentous enough to warrant some comments, even if they arrive weeks after. Stephan Kinsella and Robert Wenzel, two notables in the libertarian community, faced off over the question of intellectual property. It was, regrettably though not surprisingly, somewhat less dignified and intellectual than the Lincoln/Douglas debates. Kinsella weathered much abuse, but managed to begin a few arguments that might have led somewhere interesting in a calmer setting. He gave the impression of someone who is on top of the issue and knows it well, and though he committed a slip or two of the sort one always must expect in an extemporaneous exchange, he acquitted himself quite well. Robert Wenzel pooped his pants.

This debate, if we are to call it that, might later be seen as the last stand for the pro-IP side, not because Robert Wenzel, a vociferous supporter of IP and an increasingly recognizable Austrian, took aim at the standard bearer of the anti-IP movement but instead shot off his own pecker, but rather because in those moments when he did take some initial steps to assemble an argument, he gave us a glimpse at just how misguided the other side is. If this is the best they can do – and I've heard no better from any other source – then I believe we can consider the topic settled and get back to arguing about abortion.

In short and simple terms, property rights provide the benefit of avoiding conflict. If I live alone on an unknown island, there is no question of property rights. I may, with perfect justice, do what I wish with whatever I find and if the iguanas don't like it, they can sue me as soon as they evolve the intelligence to create a legal system. However, as soon as another person finds his way to the island, there is a potential for conflict. Now we must turn to property rights so that our relations can be harmonious and productive. If I wish to dispose of resources in a certain way, and the newcomer has a different idea, we need a way to determine whose wishes will hold sway without resorting to violence. As Kinsella pointed out, this is not a point on which he and Wenzel disagree, given that they are both Austrian libertarians.

Notice that the potential for conflict is created by the rivalry of the resources, meaning that one person's use of them diminishes the ability of the other to use them. There will be no conflicts over sunlight on this island, nor over oxygen. Any freshwater streams, provided they are used merely to provide drinking water, will be similarly non-rivalrous. There may, however, be a specific plot of ground that is desired by both of us, or perhaps a tree. A certain spear might be straighter and stronger than the others we have made, and both of us might desire to use it at the same time. These latter goods are rivalrous and therefore a point of potential dispute.

In the Kinsella/Wenzel debate, much time was wasted on scarcity and superabundance, when in fact the important factor is rivalry. When Kinsella finally managed to get Wenzel to talk about this, Mr. Economic Policy Journal demonstrated his ignorance on the topic. An economist does not use the term rivalry as a layperson does. Ohio State and Michigan have a rivalry, yes, but this is a different idea coincidentally expressed by the same permutation of syllables. When Robert Wenzel says that another store would be his rival if they started making money off his ideas, he has not demonstrated that ideas are rivalrous in the economic sense of the term, and it is the economic sense of the term which necessitates property rights. An idea is manifestly not rivalrous, because an idea is not a physical thing. An idea is a pattern of neurons, a pulse of electricity inside the skull, a particular arrangement or perhaps emanation of the brain. The brain itself is, of course, rivalrous, but the brain is already claimed property, which takes us to the inherent incompatibility of real property rights and IP.

Barring restitution in a tort, the only way I can lose property rights in something is to voluntarily give them away, either in an exchange, as a gift or as a simple renunciation of my claim to the property. IP requires easements on all of the potential property in the universe simply because someone wrote a poem. Under an IP regime, I may have ink and parchment, but as soon as you draw a picture you may prevent me from doing certain things with my ink and parchment. You can also prevent me from chiseling your picture on a rock, or tracing it in the sand and snapping a photo. You would have easements on the property of beings in other galaxies you don't even know exist. It is obvious, or should be for the libertarian, that Intellectual Property rights and real property rights are subject to a sort of Pauli Exclusion Principle, in that both of them cannot exist at the same time and in the same place.

When Wenzel was confronted with this, there followed an awkward twenty seconds of silence, and then he declared that he did not wish to discuss such matters. We, however, are at liberty to discuss them in as much depth as we want, unless Mr. Wenzel copyrights the ideas from the debate with Stephan. We can do it in the charming language of English, until such a time as it is deemed someone else's property, which it really ought to be if we are to be consistent supporters of IP. Given this exclusion principle, this quantum mechanics of property, we are left with a choice between supporting rights in physical goods, which are rivalrous, or in ideas, which are not. Either we can mitigate the inevitable scarcity of things and stuff through the Free Market, or we can bring an artificial scarcity to ideas, which in nature suffer no such yoke.

The most productive thing Wenzel did during the entirety of the debate, after having several times insisted he had Stephan's testicles in his clenched fist, was attempt to sketch a way in which copyrights and patents could be reproduced on the Free Market. In doing so, he did nothing so much as prove the error of his own position. Through contracts, both implied and explicit, one could attain easements over other property. For instance, any person who purchases a CD, by the very act of purchasing it, might be said to have consented to certain easements, thus mimicking intellectual property rights.

So insisted Wenzel, and he is correct. But this is not a property right, this is a contract. Of course you can enter into contracts with people and cast easements about and switch titles to anything the parties agree to. Third parties not consenting to the contract would not be bound by it, of course, but to a limited extent one could imitate IP in this fashion. But this is mimicry, not the actual thing itself. If intellectual property were truly a matter of rights, I wouldn't need a contract at all. When I settle down on a plot of unowned land, build a house on it and sow some seeds, it becomes mine. I don't need your permission for that; I require no signature on a piece of paper except by procedural necessity. The land becomes mine when I homestead it. Indeed, no contract would ever be possible without property rights already established.

The very fact that Wenzel resorts to contracts to bring about his IP in the Free Market is proof that he himself, at some level, recognizes the untenability of his own position. The debate, then, was nothing more than an unpleasant argument between two people who agree that only by consent can someone lose property rights in an object. One of them accepts this fact, while the other has yet to come completely to terms with it.

*The preceding was from a speech I gave at the Federal Reserve. Actually, I gave it to a friend, but we were at the Federal Reserve. Well, not precisely at the Federal Reserve, but we were in Pittsburgh, which is in the next state over. On second thought, we were in Columbus, but that is close to Pittsburgh which itself is practically the home of the Federal Reserve. Whatever.

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About the Author

Matthew Bruce AlexanderScience Fiction Author

Matthew Alexander is a libertarian living in central Ohio. A graduate of The Ohio State University, he majored in Spanish and has published a work of libertarian science-fiction called Wĭthûr Wē.

Hahah bro this was so good but then I got to the very end….I started laughing out loud and was compelled by the greatness of this gem of a blog post to comment and lavish such praise. Bravo, good sir. Bravo!

This debate, if we are to call it that, might later be seen as the last stand for the pro-IP side

You anti-IP fanatics are ALWAYS saying things like this. Can you say “wishful thinking”? Copyright is not going away, for the simple reason that it is deserved, and necessary. You can scream all you like, but that’s reality. Thanks, though, for entertaining us with your fantasies.

Self-stylizing yourself as speaking for all libertarians with their diversity of opinion is a bit rich. As is simply claiming victory. Your rivalry test fails on many levels. Let’s address your points in order:

“because an idea is not a physical thing. An idea is a pattern of neurons, a pulse of electricity inside the skull, a particular arrangement or perhaps emanation of the brain.”

But you’ve now defined an idea as a physical thing in all cases. Neurons are physical, as is a pulse of electricity in the skull. A particular arrangement is physical as well as emanations. In fact information is inherently physical. It requires a finite amount of mass and/or energy to exist. So you’ve already started out in a pickle because by your own definition an idea is a physical entity.

“IP requires easements on all of the potential property in the universe simply because someone wrote a poem. Under an IP regime, I may have ink and parchment, but as soon as you draw a picture you may prevent me from doing certain things with my ink and parchment.”

Let me ask you a different question. I invent a new gear that enables me to lift a heavy weight more efficiently. Prior to this invention the knowledge of this gear did not exist. Were you prevented from using your physical property? Do you have recourse against the universe because you were not clever enough to invent the gear yourself? But somehow I am restricting your property rights after I invent my gear. I have not subtracted anything from you by my invention and enforcement of IP. You are free to own and use your materials in any way you could prior to my invention. So now you’re left arguing what you COULD do with your property in the future which was enabled only by MY invention. But that argument is no different than what I COULD earn in the market with my idea. Or, I buy a plot of land next to your corn field and erect a huge wall blocking much of the sun from your property. The wall exists entirely on my property. I have not removed any of your property. Can you sue me to get the wall removed? Because you can no longer grow corn on it? But that limits the freedom of what I can do on my land. You’ll call foul because I’ve “initiated force” but you’ve initiated force against me by stealing my idea, replicating it, and selling it in the marketplace without having to pay the costs I incurred inventing it. Effectively you’ve made it uneconomical for me to sell me idea, jsut as I’ve made it uneconomical for you to grow corn.

“We can do it in the charming language of English, until such a time as it is deemed someone else’s property, which it really ought to be if we are to be consistent supporters of IP.”

I’m tired of this canard. The inventors of English are long dead, diffuse, and NONE have claimed property rights on it. So put that red herring back in the sea.

“Either we can mitigate the inevitable scarcity of things and stuff through the Free Market, or we can bring an artificial scarcity to ideas, which in nature suffer no such yoke.”

The Free Market by itself does not eliminate scarcity. Productivity and invention (huh, IP?) do. Ironically, eliminating IP protection will make invention much more expensive and scarcer, so you’re shooting yourself in the foot. If I have no expectation of protection for my labor of invention, then a few things happen: First, I spend a lot less money on R&D because in many cases I can’t recover my costs which results in fewer inventions(“free” market fail). Second, the money I do spend on R&D I spend on things that I can reasonably expect to hold secret at least long enough to recover my costs and ideally indefinitely. That results in my idea never entering into the public domain and again we are all poorer for it. So your utilitarian argument also fails.

“When I settle down on a plot of unowned land, build a house on it and sow some seeds, it becomes mine. I don’t need your permission for that; I require no signature on a piece of paper except by procedural necessity.”

Which is precisely analogous to IP. When I discover a new design or algorithm it becomes mine. I don’t need your permission for that. In fact you DO need my permission to recognize your deed on a plot of land. The fact that you axiomatically claim ownership of a physical item is no different than me axiomatically claiming ownership of intellectual property. Is it because your labor becomes co-mingled with the good? Well, my labor is co-mingled with the IP. There’s no difference.

So we’re back to rivalry. I can’t come and take your corn because that deprives you of corn, but you claim that you can take my IP because it doesn’t deprive me of anything. Except that it does deprive me of my competitive advantage or my “homesteading” rights of getting to the idea (which by your examples we’ve established is a physical thing) first. But that’s not excludable, so it can’t be enforced. OK, I invent an algorithm that flawlessly predicts winning lottery numbers. I do not publish that information. You sit outside my house on public land and monitor my power usage. You infer my algorithm from the subtle fluctuations in my power usage, but you do this from the emanations in free space on public lands. You then use my algorithm to win the same lotteries I do. Is that theft? I haven’t lost anything according to your rivalry theory. You haven’t trespassed on my property.

More specifically, non-rival is supposed to mean zero marginal cost. But the act of copying an idea still requires a physical form and almost always does have marginal cost. One of the few exceptions would be broadcasts, but virtually all patents for physical objects fail this test.

So all we are left with is two sides. One that accepts full property rights (pro-IP) and one that wants to steal. Yes, that’s an inflammatory statement but no less so than your conclusion. You want to benefit from the labor of others without compensating them. That’s hardly libertarian.

I feel that your understanding of libertarianism is very flawed, and your arguments muddled.

“But you’ve now defined an idea as a physical thing in all cases. Neurons are physical, as is a pulse of electricity in the skull. A particular arrangement is physical as well as emanations. In fact information is inherently physical. It requires a finite amount of mass and/or energy to exist. So you’ve already started out in a pickle because by your own definition an idea is a physical entity.”

No one has ever demonstrated exactly what an idea is as it relates to the brain, which is why I used the word perhaps. I was giving possibilities as to what an idea was; you have created a strawman.

Even if it is a physical thing – and a pattern is an arrangement of physical things, not the actual physical thing itself – it doesn’t detract from my argument. If an idea is an actual physical thing in my brain, then either it is mine or someone else has an easement in the property of my body simply for coming up with an idea. No libertarian worthy of the name could support the latter case.

“Let me ask you a different question. I invent a new gear that enables me to lift a heavy weight more efficiently. Prior to this invention the knowledge of this gear did not exist. Were you prevented from using your physical property? Do you have recourse against the universe because you were not clever enough to invent the gear yourself?”

Skippy, property rights are for beings with the intellect to understand and respect them. We don’t recognize torts against tornadoes for destroying houses, we don’t try alligators for murder when they eats dogs, and we don’t blame the universe if a person does not hit upon an idea. It’s not clear exactly how you think this fits in to your concept of IP, but it damn sure isn’t libertarian.

To have title to a piece of property is to determine how the property will be disposed. If I cannot take my lump of metal and dispose it in such a way as to make a copy of your gear, then yes, “somehow” you have restricted my property rights. You want some agency to threaten me with physical violence to prevent me from shaping my metal into a copy of your gear, but want to try to argue that you are not restricting my property rights.

“I have not subtracted anything from you by my invention and enforcement of IP. You are free to own and use your materials in any way you could prior to my invention.”

Instead of talking about subtracting something from me – I’m not talking about lopping off my penis! – let’s phrase it more accurately. The question is whether or not you are infringing on my property rights.

Under an IP regime, I am manifestly not “free to own and use [my] materials in any way [I] could prior to [your] invention.” I could have written the poem; I simply didn’t. I could have composed the song; I merely didn’t.

A property right is the freedom to dispose of a piece of property in a way you see fit. It is not a list of things you can do with your property, it is everything you might do with it, even theoretically, provided you do not restrict someone else’s right in their property. I have the right to jump over the moon, provided I can land without turning into a human meteor and blowing up someone’s house. I have the right to jot down a Shakespearian sonnet on my pad of paper, even though I cannot, just at the moment, accomplish this because I have no sonnet memorized.

“So now you’re left arguing what you COULD do with your property in the future which was enabled only by MY invention.”

No, it was not enabled by your invention. Your invention is the physical manifestation of your idea; the gear from your example. To the extent that I am enabled, it was by your idea. So what?

“But that argument is no different than what I COULD earn in the market with my idea.”

That argument is the one which you just claimed was invalid. So if your potential market earnings is no different… it’s also invalid.

At any rate, it is very different. You are not the owner of a piece of property which has not been given to you. If I earn money that you might have earned, I am doing it by convincing the owners of that money to transfer title of it to me. That’s a very different thing from telling me I cannot do something with property that is mine, irrespective of whether I thought to do that something with it before or after you thought of it.

“Or, I buy a plot of land next to your corn field and erect a huge wall blocking much of the sun from your property. The wall exists entirely on my property. I have not removed any of your property. Can you sue me to get the wall removed? Because you can no longer grow corn on it? But that limits the freedom of what I can do on my land. You’ll call foul because I’ve “initiated force” but you’ve initiated force against me by stealing my idea, replicating it, and selling it in the marketplace without having to pay the costs I incurred inventing it. Effectively you’ve made it uneconomical for me to sell me idea, jsut as I’ve made it uneconomical for you to grow corn.”

Making something uneconomical is not a property rights violation. If I invent a computer, I might make typewriters uneconomical. I have not violated the property rights of typewriter speculators.

Your example of building the wall is a property rights violation not because you hurt me economically, but because you have infringed on my use of property. If I clear a plot of ground for growing corn, then you infringe on those established rights by damning the river, blocking the sun or removing the oxygen. If I clear a plot of ground for growing corn, you do not infringe on my property rights by converting the entire world to the Caveman Diet and making the price of corn fall to near zero. The rentability of a piece of property is irrelevant.

Furthermore, when you say I have initiated force against you by stealing, replicating and selling your idea, you commit a fatal flaw, one which your side seems congenitally incapable of avoiding. I have not stolen your idea. I copied it. A thing is copied when a replica is produced and now there are two. A thing is stolen when the original possessor no longer has it, because the thief now does. There remains only one thing – the original – in case of theft. If I copy your idea, you are still aware of your idea. I do not erase a song from your memory by singing it myself. Therefore, what you are talking about is merely replication, not theft. QED.

“I’m tired of this canard. The inventors of English are long dead, diffuse, and NONE have claimed property rights on it. So put that red herring back in the sea.”

The point is not that anyone is claiming English, but that your conception of property rights would allow for it to happen. Property rights, after all, can be passed down from person to person. It is conceivable that we all owe royalties for speaking English to the heir of the person or people who created it. How about we take that back out of the sea and set down right in front of you to deal with?

“The Free Market by itself does not eliminate scarcity.”

Excuse me, but I said mitigate scarcity, not eliminate it. When accuracy is such an enemy to your argument, there can be few better indicators that your argument is invalid.

“Productivity and invention (huh, IP?) do.”

Productivity and invention are part of the Free Market. What you just said is akin to saying that doors don’t swing open, hinges do.

“Ironically, eliminating IP protection will make invention much more expensive and scarcer, so you’re shooting yourself in the foot. If I have no expectation of protection for my labor of invention, then a few things happen: First, I spend a lot less money on R&D because in many cases I can’t recover my costs which results in fewer inventions(“free” market fail). Second, the money I do spend on R&D I spend on things that I can reasonably expect to hold secret at least long enough to recover my costs and ideally indefinitely. That results in my idea never entering into the public domain and again we are all poorer for it. So your utilitarian argument also fails.”

Except that we already know that this is not true. If you want a complete debunking of this hypothesis, read Against Intellectual Monopoly. The authors, along with a regrettable use of the feminine pronoun as a neutral pronoun, decisively demonstrate in any industry you care to mention that IP chokes off supply, rather than increases it. This can be done theoretically, as I did in my latest post, as well as with case studies, which abound in the book cited above. Monopolists do not get filthy rich by expanding supply!

“Which is precisely analogous to IP. When I discover a new design or algorithm it becomes mine. I don’t need your permission for that.”

Right. You are welcome to your idea, with or without my permission. But I don’t need your permission to make replicas with property that I own.

“In fact you DO need my permission to recognize your deed on a plot of land.”

“Recognize” is not what we’re talking about! The land is mine when I settle on it, provided it was unowned when I settled on it. I don’t need your permission to have a right to it. I might need your cooperation to keep and maintain it in reality, but the right to it is mine from the moment I homestead it. Listen, if you’re not a libertarian, just come out and say so. The article you are responding to was written for libertarians.

“The fact that you axiomatically claim ownership of a physical item is no different than me axiomatically claiming ownership of intellectual property.”

I don’t “axiomatically claim ownership;” I claim ownership when I homestead it.

“Is it because your labor becomes co-mingled with the good?”

No, Mr. Locke, it’s not.

“Well, my labor is co-mingled with the IP. There’s no difference.”

Let me state your sentence to say what you wanted it to say: “Well, my labor is co-mingled with the IDEA. There’s no difference.”

Let’s leave alone the fact that you misjudged my basis for property rights and simply point out that I am not trying to take your idea away from you. Even if we accept the co-mingling of labor with ideas, I am not doing anything to your idea. I am simply copying it for use on my own property. I am perfectly happy to leave you alone; you’re the one who wants to use force. What you just did is called projection.

“I can’t come and take your corn because that deprives you of corn, but you claim that you can take my IP because it doesn’t deprive me of anything. Except that it does deprive me of my competitive advantage”

We’ll stop you right there. You do not have any right to a competitive advantage. You have a right to your property, not to how other people value your property.

“OK, I invent an algorithm that flawlessly predicts winning lottery numbers. I do not publish that information. You sit outside my house on public land and monitor my power usage. You infer my algorithm from the subtle fluctuations in my power usage, but you do this from the emanations in free space on public lands. You then use my algorithm to win the same lotteries I do. Is that theft?”

No, it’s not theft, but it could be a property rights violation depending on the details of my monitoring your emanations.

Non-rivalrous means an additional use of something does not restrict anyone else’s ability to use it. A lighthouse is a typical example. An idea is non-rivalrous, because I can sing a song without infringing on your ability to sing it. I can think about a poem without infringing on your ability to remember it.

Since you did not understand rivalry – much like Wenzel – the foundation of your argument will not support the rest of the argument, and I can allow it to fall of its own weight.

You demonstrated no ability to distinguish between theft and copying. You have a very weak grasp on the libertarian concept of property rights. Consequently, your argument is a shambles. If you are intellectually committed to libertarianism, you need to correct these problems. If you are simply emotionally invested in IP, no amount of arguing will ever convince you.